The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Monday, April 24, 2017

How many innocent people are in federal prison?

Ninth Circuit Judge Alex Kozinski told 60 Minutes that about 1% or over 20,000 innocent people are in federal prison. "That's a lot of people!" The number is almost definitely higher and yet many federal judges aren't doing as much as Kozinski to check the executive. And boy do we need a strong judiciary right now with AG Sessions.

We should have our U.S. Attorney nominee this week. It will be interesting to see if that person is willing to stand up to Trump/Sessions or whether they will go back to the old ways where there is limited discovery, no exhibit lists, etc. etc.

It appears that in the Ft. Lauderdale shooting case that the prosecution is handing over all of the evidence. From Paula McMahon:

Prosecutors handling the case against a man accused of
fatally shooting five people and wounding six others at Fort
Lauderdale’s international airport are still turning over massive
amounts of evidence to the defense, they said in court on Friday.
In
the coming weeks, they plan to hand over electronic evidence from
computers and phones used by Esteban Santiago before the Jan. 6 mass
shooting.
Both sides said they are still interviewing numerous
potential witnesses who may have information about the shooting and
Santiago’s state of mind.
The defense team, from the
Federal Public Defender’s office, said Santiago, 27, is continuing to
take medication for schizophrenia and schizoaffective disorder. They
said his condition appears to have stabilized and he remains legally
competent to stand trial.

It also appears that Haitian coup leader Guy Philippe will plead guilty today.

8 comments:

Anonymous
said...

"And boy do we need a strong judiciary right now with AG Sessions."

Federal judges already have lifetime tenure. What could be stronger? Immortal tenure? One problem, there is no separation of powers between the judiciary and the DOJ. The DOJ is executive in name only. In fact the judiciary and the DOJ are both staffed by lawyers - all officers of the court - the all part of the judiciary.

Lawyers are neither ordinary workers nor highly skilled professionals. Lawyers admitted to a regulatory bar are "officers of the court" and part of the judicial branch of government. Ex parte Garland, 71 U.S. 333 (1866). As a lawyer admitted to a regulatory bar, AG Sessions is an "officer of the court" and part of the judicial branch of government.

Is this separation of powers ever violated? Yes, all the time. Welcome to dysfunction in government. Unfortunately the DOJ is a lawless, unconstitutional abomination, in my opinion. Recall the US Attorney General (Lynch) privately meet on the tarmac the husband (Bill Clinton) of the person being investigated by the FBI (HRC). Lawyers helping lawyers. DOJ is executive in name only.

The practice of law is a profession the purpose of which is to supply disinterested counsel to others using independent professional judgment. So long as lawyers work as counsel to the DOJ, that's fine. Lawyers admitted to the practice of law are officers of the court and part of the judicial branch of government; such lawyers cannot be part of the legislative or executive branch.

Historically, "The Office of the Attorney General was created by the Judiciary Act of 1789 (ch. 20, sec. 35, 1 Stat. 73, 92-93), as a one-person part-time position..." https://www.justice.gov/about

"However, the workload quickly became too much for one person, necessitating the hiring of several assistants for the Attorney General. As the work steadily increased along with the size of the new nation, private attorneys were retained to work on cases." That is the answer to separation of powers question for an executive branch DOJ. (established in 1870 by ch. 150, 16 Stat. 162, "the 1870 Act"). An executive department, headed by an executive who is not an "officer of the court" (and part of the judicial branch). The executive could be someone with a law degree who is not admitted to practice, that would preserve separation of powers. The executive head of the DOJ would then retain private attorneys/private law firms to work on cases. The result would be a much better functioning DOJ, decentralized, a DOJ that might protect, and not abuse, the rights of the citizens of the United States.

The National Credit Union Administration paid two law firms more than $1 billion in fees and expenses to help recover more than $4 billion from banks in cases related to faulty subprime mortgages.

The U.S. agency sued the banks to recover money for failed corporate credit unions that lost money holding residential mortgage-backed securities, the Am Law Daily (sub. req.) reports.

Kellogg Huber Hansen Todd Evans & Figel was paid $506.3 million, and Korein Tillery was paid nearly $504.8 million. The contingency agreement by the law firms gave them 25 percent of net recoveries.

NCUA board chairman Rick Metsger defended the contingency arrangement in a statement, according to the Am Law Daily. "Without this fee arrangement, which shifted most of the risk of these legal actions to outside counsel, there would have been no legal investigation of potential claims, no litigation and no legal recoveries," he said."

The foregoing would reduce costs to the government by using contingent fee agreements, and "help recover more than $4 billion from banks in cases related to faulty subprime mortgages."

If you are a lawyer, would your firm like to earn $1 billion in fees?

The U.S. DOJ will not even try to recover billions from banks in cases related to faulty subprime mortgages because, inter alia, the U.S. DOJ is a political agency that is generally unwilling to upset the banks and lending institutions that run the government of the United States.

If I were President Trump, I would have started to implement the forgoing already. While President Trump is a fellow Wharton School alumni, I do not agree with most of his policies.

For example, I would increase immigration and build cities, not walls.

I would end the war on drugs, as proposed by William F. Buckley, Jr. in 1995, see The War on Drugs is Lost, National Review

http://www.nationalreview.com/article/383913/war-drugs-lost-nro-staff

I would scrap Obamacare in favor of either single payer healthcare, such as the business case for single payer FixItHealthcare, or Physicians for a National Health Program, the Expanded & Improved Medicare for All Act, or what congress used to get, see the links below.

Regarding the 60 Minutes story and shortage of execution drugs, so long as the death penalty is upheld as constitutional, the U.S. Supreme Court needs a compounding pharmacy within its walls to make the killing cocktails. A Justice could then certify the contents of the lethal drug doses...

Judge Kozinski has a point about advocating for the firing squad or even the guillotine as a means of carrying out a death sentence. It was wrong of our government to try and turn executions into a type of ghastly medical procedure.

The Southern District of Florida blog was started in 2005 by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.